509 P.3d 223
Utah Ct. App.2022Background
- On Aug. 29, 2017, Alvie Grover stole two vehicles, led police on a high-speed chase, shot a police K9 (Tess), and was shot by officers; Tess and Grover survived. Grover was charged with eight offenses and pleaded guilty to four felonies (two counts theft of an operable motor vehicle, one count criminal mischief, one count injuring a police service animal).
- The court ordered a presentence investigation (PSI). Grover submitted a pro se letter alleging the AP&P investigator was biased, had committed errors in the PSI, and had mistreated him; he also (through counsel) purportedly submitted a 35‑page packet of supplemental documents to AP&P that the court said it had not seen.
- At sentencing the court refused to continue to review the supplemental packet, heard allocution from Grover and victim-impact from the K9 handler, and imposed consecutive prison terms (three 1–15 year terms and one up to 5 years), citing the crime’s seriousness and Grover’s criminal history.
- Grover appealed, raising: (1) plain‑error recusal claim against Judge Ludlow (who had been Washington County Attorney when Grover was prosecuted in the 1990s); (2) the court’s refusal to consider Grover’s pro se letter; (3) the court’s refusal to consider the supplemental documents/deny continuance; and (4) related ineffective‑assistance‑of‑counsel claims.
- The Court of Appeals affirmed in all respects.
Issues
| Issue | Grover's Argument | State's Argument | Held |
|---|---|---|---|
| Judicial recusal (Due Process and Utah Code of Judicial Conduct rule 2.11(A)) | Judge Ludlow should have recused because he was Washington County Attorney when Grover’s prior conviction was prosecuted and later referenced that conviction at sentencing | No due process or rule violation; even if rule 2.11 applies, no clear authority shows recusal required for prior, separate prosecution | No plain error. Due process not implicated because Ludlow had no shown "significant, personal involvement" in the prior case; rule 2.11(A) did not obviously require recusal and other authority rejects recusal for prior separate prosecutions |
| Consideration of Grover’s pro se letter challenging the PSI | The court was required to consider Grover’s pro se objections to the PSI; or counsel was ineffective for not raising those objections | A represented defendant is not entitled to hybrid representation; pro se filings by a represented defendant need not be considered; counsel did make sentencing arguments and Grover allocuted | No error. Court not required to consider pro se filings while defendant represented; ineffective assistance claim fails for lack of prejudice |
| Supplemental documents & denial of continuance | AP&P was required to attach Grover’s supplemental packet to the PSI; court abused discretion by refusing to continue sentencing to review them; counsel was ineffective for not insisting on a continuance or submitting the packet | Statute does not require AP&P to attach defendant materials; court did not abuse discretion in declining a continuance when packet was not before it and Grover had time to have counsel submit it; counsel reasonably declined to press a futile continuance | No reversible error. AP&P not required to attach materials; no abuse of discretion; ineffective‑assistance claims fail (record inadequate and no prejudice shown) |
| Ineffective assistance of counsel (recusal, pro se letter, supplemental documents) | Counsel should have filed recusal, pressed pro se objections, ensured the court reviewed the supplemental packet | Counsel acted reasonably: recusal motion not required, pro se objections properly left to counsel, pressing a continuance would likely have been futile; no prejudice established | Claims fail. Where underlying actions were not errors or where no reasonable probability of a different outcome exists, Strickland prejudice prong not met |
Key Cases Cited
- Van Huizen v. State, 435 P.3d 202 (Utah 2019) (plain‑error and rule 2.11 analysis informing recusal review)
- Munguia v. State, 253 P.3d 1082 (Utah 2011) (distinguishing Code of Judicial Conduct violations from constitutional due process recusal claims)
- Williams v. Pennsylvania, 579 U.S. 1 (2016) (due process requires recusal where judge previously had significant, personal prosecutorial involvement in the same case)
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑prong ineffective assistance of counsel test: deficient performance and prejudice)
- Marquina v. State, 478 P.3d 37 (Utah 2020) (obvious‑error/plain‑error standard discussion)
- Regional Sales Agency, Inc. v. Reichert, 830 P.2d 252 (Utah 1992) (appellate reversal based on judicial‑conduct rule violation)
- Sharp v. State, 498 P.3d 9 (Utah Ct. App. 2021) (abuse‑of‑discretion standard for continuance at sentencing)